Obamacare decision looms 

Obamacare’s fate will almost certainly be decided by the Supreme Court of the United States in 2012, either in June or shortly after November’s election. And neither conservatives nor President Barack Obama can be sure whether they want a decision before or after the election.

There are more than 30 Obama-care cases at some stage of litigation nationwide. They present a variety of constitutional challenges to Obama’s signature legislation, including Section 1501 — the infamous individual mandate that as of 2014 Americans must buy health insurance.

Five of the Obamacare cases may be attractive to the justices. Of those, four have now been decided by three different federal courts of appeals, which have split on the law. This means that things are finally ripe for Supreme Court review.

The 6th Circuit in Cincinnati upheld the individual mandate under Congress’ power in the Constitution’s Commerce Clause and Necessary and Proper Clause. The 4th Circuit in Richmond, Va., dismissed two of the major cases, declaring the mandate is a tax authorized by the Taxing Clause and 16th Amendment.

The 11th Circuit rendered a split decision. A three-judge panel held 2-1 that the individual mandate is unconstitutional, but also partially reversed the lower court to hold that the mandate could be separated — or “severed” — from the rest of the law’s 2,700 pages.

This case is the one the Supremes will likely take. The plaintiffs are 26 states and the National Federation of Independent Business, represented by former Solicitor General Paul Clement and Jones Day partners Michael Carvin and Gregory Katsas.

This pits Clement, Carvin and Katsas — all heavyweights — against Obama’s top lawyer, Solicitor General Donald Verrilli at the Department of Justice. It also pits the majority of the states in this nation against the federal
government.

Monday was the deadline for the DOJ to petition the 11th Circuit to rehear the case en banc, meaning that all the judges on the appellate court would reconsider the three-judge panel decision.

With the deadline past, Obama’s only option is to ask the Supreme Court to take the case by granting a writ of certiorari (“cert”). Federal law gives the losing side 90 days to ask for cert, and the Supreme Court can grant extensions of up to 60 days.

The Supreme Court’s term starts the first Monday of October and typically ends the last week of June. This means that the last arguments each term fall in the last week of April, allowing the justices time to decide each case.

The last cases of each term are granted cert in mid-January, allowing the required time for both sides to file their briefs and prepare for oral argument.

So if Obama’s Justice Department petitions the court in November and the plaintiffs respond quickly, the Supreme Court will likely cert the case in time for an April argument. If so, we’ll have a decision in June.

Likewise, because they did not prevail in part of their argument, the plaintiffs in the 11th Circuit case can petition the Supreme Court quickly, if they dare.

If either side requests an extension, then we’ll likely see the case bumped until October 2012, with a decision shortly after the election.

The court could even take the extraordinary step of granting a September argument, but the decision would still come after Election Day. 

This case could really go either way. If the Supreme Court strikes down Obamacare, it will be a body blow to Obama. If it upholds Obamacare, it will be a vindication.

So, will either side roll the dice and press for a decision before the election?
 
Examiner legal contributor Ken Klukowski is a senior fellow with the Family Research Council, and analyzes Obamacare in “Resurgent: How Constitutional Conservatism Can Save America.”

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Ken Klukowski

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